Clarifying "Missed Evidence" as a Clerical Error (Rule 4-2)

On rare occasion, the situation arises when an arbitrator expressly states that a specific evidence item "would have been helpful" or "was not submitted" when, in fact, it was properly listed as evidence and submitted by a party. In essence, the arbitrator "missed" the submitted evidence when reviewing the case.

If, at AF's discretion, the arbitrator confirms that the referenced evidence was, in fact, missed or not viewed when the case was originally heard, the arbitrator will be permitted to consider that evidence and amend the decision, if needed. This will be considered a correctible clerical error on the part of the arbitrator in accordance with Rule 4-2 (see definition below).

It is not a correctible clerical error when an arbitrator makes no reference at all to an evidence item and a party perceives it was not reviewed. Arbitrators are trained to comment only on the evidence that influenced their decision, not each evidence item.

Clerical Error — An unintentional mistake made by Arbitration Forums' staff or the arbitrator(s). Examples of AF staff error include not providing proper notice of the Materials Due Date or not assigning a requested three-person panel. Arbitrator errors include mathematical errors in applying the liability percentage against the amount of damages proven, switching the parties when recording the decision, and missing submitted evidence. It is at AF's sole discretion to determine whether a correctible error was made.

Damage Disputes from Both Perspectives

We recently offered a webinar covering damage disputes from both the Applicant and Respondent perspectives. Interest was high, and it was our pleasure to accommodate the demand with additional sessions! Attendees spanned those who work on the Applicant side, the Respondent side, and some who work on both sides. While the webinar was primarily designed for filers and responders, we were pleased to see some member arbitrators in attendance too!

We want to share a few key takeaways for those who could not attend. First, there is a difference between the obligation that a first-party carrier has to its policyholder and that of a liability carrier to a claimant. First-party coverage is a contractual relationship generally designed to indemnify, or to return the insured to pre-accident state, unless special coverage is purchased that provides for betterment, such as New Car Replacement Coverage. The obligation of a liability carrier to a claimant is also based on indemnification, but differs in that it is based on its insured's legal liability for damages. An awareness of this difference is critical to both the Applicant and Respondent when arguing damages.

Next, it is important to remember that in arbitration, proven damages are not at issue unless disputed by the Respondent. Rule 2-5 specifies how Respondents must present a damages dispute: "If a responding company disputes damages, it must present all damages arguments and disputed dollar amounts, if known, in the Dispute Damages section." It is important to remember the arbitrator is not allowed to investigate or to introduce arguments; the arbitrator must objectively evaluate the arguments and evidence presented to decide the dispute.

The best chance of proving your case is including specific arguments and linking them to submitted evidence. For example, if arguing the Applicant's duration of rental storage was too lengthy, do you have evidence such as an estimate or rental bill that would support a shorter duration? If arguing the Applicant's chosen repair parts constituted betterment due to the age of the vehicle, what evidence do you have to support this theory?

Finally, if an Applicant anticipates a damage dispute, it can argue its rationale for the damages paid in the contentions. If arguing the circumstances of a claim support the payment, explain why and link the arguments to submitted evidence. For example, if arguing a reasonable parts search was conducted and LKQ parts were not readily available, include proof to document the search. If arguing a 30-day rental on a total loss is owed by the Respondent, explain and support the extenuating circumstances of the claim, such as serious injury to the owner, vehicle under police hold, or the accident occurred before a lengthy holiday weekend. While companies understandably have handling guidelines, there is no industry standard to pay a particular amount for a feature on claim. Each claim must be handled based on its own unique merits.

Training Opportunities

Whether you are filing for the first time or want a refresher course, these interactive, instructor-led webinars offer valuable information on filing and responding to claims. Sign up today on the AF website!

Key Arbitration Rules and Terms
March 29, 2 PM EST

Upon completion of this Webinar, learners will be able to better explain and apply the key rules and terms of AF's intercompany arbitration programs. Sign up today on the AF website!

Writing Effective Contentions (Filing Company)
March 23, 2 PM EST

In this 60-minute, instructor-led webinar, develop the skills you need to prepare an effective case as an Applicant. Learn how to write an introductory statement, body, and a closing statement, and discover how to use the "linking" technique to support each allegation with specific evidence. An activity provides learners with the opportunity to apply the content discussed. Sign up today on the AF website!

Writing Effective Contentions (Responder Company)
April 24, 2 PM EST

In this 60-minute, instructor-led webinar, develop the skills you need to present an effective case as a Respondent. Learn how to write an introductory statement, body, and a closing statement, and discover how to use the "linking" technique to support each allegation made with specific evidence. An activity provides learners with the opportunity to apply the content discussed. Sign up today on the AF website!